3.A
defendant’s refusal to perform field sobriety tests may be admitted as evidence
if the questioning leading to the refusal was non-custodial.

4.A
defendant’s prior license revocations may be used as charge enhancements for a
later-filed driving-while-impaired or refusal-to-submit charge where the
defendant claims that her constitutional rights were violated during the prior
license revocations, but fails to provide evidence to support her
contentions.

A
jury found appellant not guilty on the driving-while-impaired (DWI) charge, but
found her guilty of the refusal-to-submit charge.

Appellant
argues that: (1) Minn. Stat. § 169A.20, subd. 2, is unconstitutional; (2) the
district court incorrectly instructed the jury as to the refusal-to-submit
charge; (3) the admission into evidence of her refusal to perform field
sobriety tests was error; and (4) the district court erred by using her prior
license revocations as charge enhancements in this case because her
constitutional rights were violated during those prior license revocations. Because we conclude that the district court
did not commit error, we affirm.

FACTS

On February 18, 2001, Minneapolis
police officer Joel Dittman observed a car traveling the wrong way on a one-way
street. The car, driven by appellant
Susannah Jane Mellett, was stopped by the officer. The officer suspected that appellant was under the influence of
alcohol. The officer asked appellant to
leave the vehicle and perform field sobriety tests. Appellant refused to perform any tests and also refused to take a
preliminary-breath test. The officer
arrested appellant and took her to the chemical-testing unit in downtown
Minneapolis. Appellant indicated that
she wanted to contact an attorney and then tried to contact an attorney for
approximately 30 minutes. Appellant
never reached an attorney and refused to take a breath test or provide a blood
or urine sample.

Because
appellant’s driving privileges had been revoked twice within the preceding ten
years, she was charged with first-degree DWI and first-degree refusal-to-submit
to chemical testing (hereinafter “refusal-to-submit charge”).

Appellant
moved to suppress her statement to the officer in which she refused to perform
field sobriety testing. At trial, the
district court allowed the state to present evidence of appellant’s refusal to
perform field sobriety tests. Appellant
submitted a proposed jury instruction regarding the refusal-to-submit
charge. The district court declined to
give appellant’s instruction, and gave CRIMJIG 29.28, which is the form jury
instruction for the refusal-to-submit charge.

The jury found appellant guilty of
the refusal-to-submit charge and not guilty of the other charges. Appellant’s sentence was enhanced due to
previous revocations, and appellant’s sentence was stayed pending this appeal.

It is a crime for any person to refuse to submit to a
chemical test of the person’s blood, breath, or urine under section 169A.52
(test refusal or failure; revocation of license).

Both the United States and Minnesota
constitutions provide substantive-due-process protections against arbitrary and
capricious state action. U.S. Const.
amend. XIV; State v. Mitchell, 577 N.W.2d 481, 491 (Minn. 1998).

But
the United States Supreme Court has stated that if a claim is covered by a
specific constitutional provision, that claim must be analyzed according to the
standards established by the specific provision, and not as a possible
violation of the claimant’s substantive-due-process rights. County of Sacramento v. Lewis, 523
U.S. 833, 842, 118 S. Ct. 1708, 1714 (1998); Dokman v. County of Hennepin,
637 N.W.2d 286, 295 (Minn. App. 2001) (holding that, because a claim could be
addressed under Fourth Amendment, the court did not need to address party’s due
process claim).

A. Fifth Amendment

The
Minnesota Supreme Court has already addressed the constitutionality of the
refusal statute and has found that the statute does not violate a defendant’s
right against self-incrimination, guaranteed by the Fifth Amendment of the
United States Constitution and article I, section 7, of the Minnesota
Constitution.[3] Therefore, appellant’s
substantive-due-process claim is without merit because the refusal statute
passes constitutional muster under a Fifth Amendment analysis. See McDonnell v. Comm’r of
Pub. Safety, 473 N.W.2d 848, 856 (Minn. 1991). But in the interests of justice, we also address appellant’s
right-to-privacy and Fourth Amendment challenges to the refusal statute. See Minn. R. Civ. P. 103.04.

B.
Right to Privacy

There
is a right to privacy under the Minnesota constitution. See State v. Gray, 413 N.W.2d 107,
111 (Minn. 1987). “The right begins
with protecting the integrity of one’s own body and includes the right not to
have it altered or invaded without consent.”
Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn. 1988). The right to privacy, though, is not
absolute. Minnesota State Bd. of
Health v. City of Brainerd, 308 Minn. 24, 36, 241
N.W.2d 624, 631 (1976) (holding that “[w]hether one’s right to bodily integrity
is designated a right of personal privacy or not, though, does not alter [the]
conclusion that the right, like other constitutional rights, is not
absolute”). “When there is an
allegation of interference by the state with a protected right of privacy,” we
must, “balance the interest in the privacy against the state’s need to intrude
on that privacy.” LaChapelle v.
Mitten, 607 N.W.2d 151, 164 (Minn. App. 2000), review denied (Minn.
May 16, 2000).

Here, because the legislature has a
compelling state interest in protecting state residents from drunk drivers, and
an important part of the implementation of that interest is the testing of
those whom officers have probable cause to believe have been drinking and are
driving while impaired, that balancing test favors intrusion by the state on
privacy rights held by appellant. See
South Dakota v. Neville, 459
U.S. 553, 558-559, 103 S. Ct. 916, 919-920 (1983) (stating that the United
States Supreme Court has long recognized the compelling state interest in
highway safety); State v. Hulst, 510 N.W.2d 262, 263 (Minn. App. 1994)
(recognizing necessity of probable-cause determination by officer in
refusal-to-submit context).

This court has recognized that other
compelling state interests may justify an intrusion into the right to
privacy. See LaChapelle, 607
N.W.2d at 164 (holding that state’s compelling interest in protecting children
justifies intrusion against familial right to privacy); Humenansky v.
Minnesota Bd. of Med. Exam’rs, 525 N.W.2d 559, 567-68 (Minn. App. 1994)
(holding that right to privacy was not violated by statute that allowed
physician to be required to submit to mental and physical examinations), review
denied (Minn. Feb. 14, 1995). In
this case, a compelling state interest is involved, and appellant’s right to
privacy, to whatever degree it exists here, is justifiably subject to
intrusion.

C. Fourth Amendment

At
oral argument, appellant asserted that Schmerber v. California, 384 U.S.
757, 86 S. Ct. 1826 (1966), supports her claim that criminalizing the refusal
to submit to chemical testing violates the Fourth Amendment. Appellant correctly argues that Schmerber
allows for the withdrawal of blood without a warrant from a suspected drunk driver,
if the withdrawal is conducted in a reasonable manner, for example, as ordered
by a physician, because of the possible dissipation of alcohol from the
suspect’s system. Id. at 770-72, 86 S. Ct. at 1835-36.

While
appellant concedes that the state has the power to take a blood sample, by
force if need be, appellant also argues that because the state has this power,
all other means of coercion available to the state to require submission to
chemical testing are foreclosed. But
appellant cites no direct authority for this conclusion, and the presence of
one constitutional remedy to enforce the driving-while-intoxicated statutes
cannot prevent legislative enactment of other procedures. See Davis v. Comm’r of Pub. Safety,
517 N.W.2d 901, 904 (Minn. 1994) (concluding that the ability of the state to
take a blood sample by force does not answer question of what process is due if
suspect refuses to submit to testing), superseded by statute as recognized
in Hamilton, 600 N.W.2d at 722. “It
is not for this court ‘to question the wisdom * * * of a police
regulation.’” McLeod County Bd. Of
Comm’rs v. State, Dep’t of Nat’l Res., 549 N.W.2d 630, 634 (Minn. App.
1996) (quoting Lee v. Delmont, 228 Minn. 101, 108, 36 N.W.2d 530, 536
(1949)) (ellipsis in original), review denied (Minn. Aug. 20,
1996). Therefore, we defer to the
legislature’s judgment and hold that the refusal statute does not violate
appellant’s Fourth Amendment rights.

II.

“The refusal to give a requested
jury instruction lies within the discretion of the trial court and no error
results if no abuse of discretion is shown.”
State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989) (citation
omitted).

Appellant
challenges the district court’s decision to give CRIMJIG 29.28 (formerly
CRIMJIG 29.17.02). Appellant argues
that CRIMJIG 29.28 misstates the elements of Minn. Stat. § 169A.20, subd.
2, and that the district court should have given appellant’s proposed jury
instruction, instead of CRIMJIG 29.28.

First,
we note that appellant’s requested jury instruction addresses several legal
issues that would be inappropriate to submit to a jury for consideration. For example, appellant’s requested jury
instruction addresses the issue of right to counsel, and whether that right was
fully vindicated by the officer in this case.
But purely legal issues, such as whether the right to counsel was
vindicated, are for the district court, and not for the jury, to decide. Parsons v. Comm’r of Pub. Safety, 488
N.W.2d 500, 501 (Minn. App. 1992) (whether driver’s right to counsel was
vindicated is a question of law for the district court to decide and for this
court to review de novo).

Furthermore,
this court has addressed this particular jury instruction before in State v.
Olmscheid, 492 N.W.2d 263 (Minn. App. 1992), and Olmscheid supports
the conclusion that CRIMJIG 29.28 was the proper instruction to be given in
this case.

In Olmscheid, this court
concluded that the refusal statute now codified at § 169A.20, subd. 2,
incorporates some of the civil implied-consent statute via the language “under
section [169A.52].” Id. at 266
(recently renumbered statute in brackets).
But this court also concluded that the inclusion of such language does
not require that all of the elements of the related civil violation be proven
beyond a reasonable doubt. Id.
Therefore, the district court did not violate Olmscheid’s due process
rights when it did not instruct the jury on all of the elements of the
civil implied-consent statute. Id.

Appellant argues that the state did
not prove several elements beyond a reasonable doubt, and that such lack of
proof violated her due process rights.
But as Olmscheid states, “we must follow the general rule that
the definition of a criminal offense is within the province of the
legislature.” Id. (citation
omitted). The legislature has not acted
to substantively amend the refusal statute since the Olmscheid
decision. Therefore the district court
did not abuse its discretion by giving CRIMJIG 29.28.

III.

We largely defer to a district
court’s evidentiary rulings, which will not be overturned absent a clear abuse
of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). The admissibility of the refusal to perform
field sobriety tests into evidence is an issue not yet addressed by Minnesota
appellate courts.[4]

Berg, a recent New York case,
determined that if a refusal to perform field sobriety tests is not the product
of custodial interrogation, the refusal does not need to be preceded by Miranda
warnings to be admissible. See Berg,
708 N.E.2d at 982.

Farmer and Mallick, on
the other hand, analyze the refusal to perform field sobriety tests in a
testimonial versus non-testimonial context.
Farmer analogized the refusal to perform field sobriety tests to
a refusal to take a blood test. Farmer,
404 S.E.2d at 373. The Farmer
court held that there is no reason to distinguish between the performance of
field sobriety tests, which is non-testimonial in nature, and the act of
refusing to submit to chemical testing.
Id. Therefore, Farmer held that a refusal to perform field
sobriety tests is non-testimonial in nature, and, consequently, the Fifth
Amendment allows the refusal into evidence.
Id.Mallick, like Farmer, addressed the refusal to
perform field sobriety tests from a testimonial perspective. Relying on Farmer, the Mallick
court also determined that the refusal was non-testimonial in nature. Mallick, 565 N.W.2d at 246.[5]

The Stalsbroten court noted
that the majority of courts have concluded that the admission into evidence of
a refusal to perform field sobriety tests does not violate the privilege
against self-incrimination.[6] But the Stalsbroten court held that a
refusal to perform field sobriety tests is admissible for two separate reasons:
(1) the refusal is non-testimonial evidence, Stalsbroten, 978 P.2d at
1063; and (2) the refusal was not impermissibly compelled in violation of the
defendant’s Fifth Amendment right. Id. at 1064.

Therefore, Virginia and Wisconsin
courts allow the refusal to perform field sobriety tests into evidence because
it is non-testimonial, Washington courts allow the refusal because it is
non-testimonial and not impermissibly compelled, and New York courts allow the
refusal into evidence because the questioning leading to the refusal is not
custodial interrogation.

Characterizing
the refusal to perform field sobriety tests as testimonial or non-testimonial
is not easily accomplished and is subject to much debate. See e.g., Stalsbroten, 978
P.2d at 1065-70 (Johnson, J., dissenting) (arguing that the refusal “was
admittedly offered solely for its testimonial value—the implied assertion of
belief that Stalsbroten knew he was drunk.
* * * Thus, indisputably, the incriminating value of the evidence here
stemmed in whole from its testimonial component.”).

But
we think it is unnecessary to reach this question because the better analysis
is that appellant’s refusal to perform field sobriety tests here did not occur
during custodial interrogation, and is therefore admissible under our
custodial-interrogation jurisprudence.

In
Miranda, the United States Supreme Court held that under the Fifth
Amendment, a criminal defendant has a right against self-incrimination and is
entitled to be informed of that right. Miranda
v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). The right to a Miranda warning attaches only
during custodial interrogation. Id.

The
determination of whether a suspect is in custody is an objective inquiry. The district court must decide whether a
reasonable person in the suspect’s situation would have understood that she was
in custody. State v. Hince, 540
N.W.2d 820, 823 (Minn. 1995).

If
a suspect is not under arrest, a district court must consider all of the
surrounding circumstances and assess whether a reasonable person in the
suspect’s position would have believed she was in custody to the degree
associated with arrest. State v.
Champion, 533 N.W.2d 40, 43 (Minn. 1995).
We independently review the district court’s determination regarding
custody and the necessity of a Miranda warning. Hince, 540 N.W.2d at 823.

At
trial, the district court denied appellant’s motion to exclude her refusal to
perform field sobriety tests, but did so without making a specific finding as
to whether appellant was in custody when she refused to perform those
tests.

The
testimony at the evidentiary hearing and at trial indicates that the refusal by
appellant came before arrest and without custodial interrogation. The officer asked appellant to leave her
vehicle based on his suspicions that she was intoxicated. After getting out of her vehicle, appellant
refused to perform any type of field sobriety test. Only then did an arrest occur.

Before
appellant’s refusal to perform field sobriety tests, a reasonable person would
not have felt that she was in custody to the degree associated with formal
arrest. See Champion, 533 N.W.2d
at 43. There is no suggestion in the
record that the officer used anything but a single request to induce appellant
to get out of her vehicle, and there was no display of force. While it is true that a uniformed officer,
using a siren and emergency lights, conducted this traffic stop, more is
required to indicate custodial interrogation.
See, e.g., State v. Moorman, 505 N.W.2d 593, 599 (Minn. 1993) (person
under arrest and therefore in custody when handcuffed); State v. Olson, 634 N.W.2d 224, 229 (Minn. App. 2001) (concluding that an officer
telling suspect he was “under arrest” indicated custody), review denied (Minn. Dec. 11, 2001).

Since there is no
evidence that appellant was in custody, her refusal to perform field sobriety
tests was not the product of custodial interrogation. Consequently, Miranda warnings were not a prerequisite to the use
of the refusal statement as evidence at appellant’s trial. Our conclusion is bolstered by appellant’s
counsel’s pretrial comments, where counsel stated, “I never suggested, nor do I
suggest now, that she was entitled to a Miranda warning[.]”

We leave for another
day the resolution of whether refusal to perform field sobriety tests is
testimonial and the issue of such a refusal arising in the context of custodial
interrogation by the police. It is
sufficient for our purposes in the present case to hold that because appellant
was not in custody, Miranda rights did not attach, and the district court did
not abuse its discretion by admitting appellant’s refusal to perform field
sobriety tests into evidence.

IV.

Appellant challenges the use of her
prior license revocations to enhance the refusal-to-submit charge. Because appellant was charged with
first-degree DWI and first-degree refusal-to-submit, the state had the burden
of proving two aggravating factors pursuant to Minn. Stat. § 169A.25, subd.
1. See Minn. Stat.
§ 169A.03, subd. 3 (defining aggravating factors); see also CRIMJIG
29.22 (sample jury instruction regarding one aggravating factor). Respondent produced certified copies of
appellant’s two license revocations from May 1998 and October 1997, and these
copies were submitted into evidence.

Respondent also produced a petition
to enter a guilty plea from the October 1997 incident. The petition was signed by appellant and indicates
appellant was represented by an attorney and had discussed her constitutional
rights with that attorney. Furthermore,
the petition specifically mentions that if appellant was arrested in the future
for similar charges, she could be sentenced to a gross misdemeanor based on the
plea. Such a petition is prima facie
evidence that the plea was not obtained in violation of appellant’s
constitutional rights. State v.
Fussy, 467 N.W.2d 601, 605 (Minn. 1991).
But no such petition exists in the record for the May 1998 license
revocation.

Appellant claims that her prior
license revocations may not be used because she was not given a full
opportunity to consult with an attorney.
Under the Minnesota Constitution, an individual has a limited right, upon
request, to obtain legal advice before deciding whether to submit to chemical
testing, provided the consultation does not unreasonably delay administration
of the test. Minn. Stat.
§ 169A.51, subd. 2(4) (2000); Friedman v. Comm’r of Pub. Safety,
473 N.W.2d 828, 835 (Minn. 1991). But
it is well settled that there is no Sixth Amendment right to consult
with counsel before deciding whether to consent to chemical testing. Friedman, 473 N.W.2d at 840 (Coyne,
J., dissenting) (stating that Minnesota Supreme Court has expressly rejected
the argument that a driver has a right under Sixth Amendment to consult with
attorney before chemical testing).
Therefore, appellant’s right-to-counsel argument must be based on the
statutorily granted right and not on the Sixth Amendment right to counsel.

The Nordstrom court also
concluded that once a defendant properly raises the issue of the
constitutionality of a prior conviction, the state then has the burden of
proving that the conviction was obtained consistent with constitutional
requirements. Nordstrom, 331
N.W.2d at 905.

To properly raise the
constitutionality of a prior license revocation and shift the burden of proof
to the state, an appellant must (1) promptly notify the state that her
constitutional rights were violated during a prior license revocation; and (2)
“produce evidence in support of that contention with respect to each challenged
[revocation].” Fussy, 467 N.W.2d
at 603 (citing State v. Goff, 418 N.W.2d 169, 172 (Minn. 1988)). The Dumas court recognized that
ordinarily a sworn affidavit, stating that the defendant was not represented by
counsel and did not validly waive her right to counsel, will satisfy an
appellant’s burden of production. Id.

Here, appellant provided an affidavit
stating that she did not have a full opportunity to consult with an attorney
during her prior license revocations.[7]

[A]lthough the defendant does not have the ultimate
burden of proof, the defendant is obligated to come forward with some evidence
indicating that the defendant was deprived of the right to counsel before the
state must assume its burden of proof.

Fussy, 467 N.W.2d at 603 (citation omitted). The statutorily granted right to counsel in the implied consent
context is, by its own definition, limited.
Appellant has only claimed the lack of a full opportunity to consult
with an attorney and has provided no other evidence. Given these two facts, we hold that appellant has not met her
obligation here, and therefore has not shifted the burden of proof to the
state.

Furthermore, appellant’s cursory claims in
her affidavit regarding other constitutional violations are also not supported
by any evidence. Therefore, we hold
that those claims must also fail. See id.

D E C I S I O N

The district court correctly held
that Minn. Stat. § 169A.20, subd. 2, the refusal statute, is constitutional,
and did not abuse its discretion by giving CRIMJIG 29.28 as the jury
instruction on the elements of the refusal-to-submit charge. The district court properly admitted
appellant’s refusal to perform field sobriety tests at the scene into
evidence. Appellant did not produce any
evidence that would shift the burden to the state to prove that her prior
license revocations were constitutionally obtained.

[2]
At oral argument, appellant’s counsel claimed that this alleged right to be
free from bodily invasion arises from the Fourth Amendment right to be free
from unwarranted searches and seizures.
This argument is without merit.
The Supreme Court has explicitly rejected Fourth Amendment challenges to
chemical testing in the driving-while-intoxicated context. See Schmerber v. California, 384 U.S.
757, 772, 86 S. Ct. 1826, 1836 (1966).
Therefore, we analyze appellant’s arguments pursuant to the right to
privacy that arises from article I, §§ 1, 2 & 10 of the Minnesota
Constitution, see State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992)
(stating that right to privacy under Minnesota Constitution is broader than
comparable federal constitutional provision), and separately analyze
appellant’s Fourth Amendment argument.

We
therefore conclude that in this particular context — where an individual is
requested to submit to blood alcohol content testing and potentially faces
criminal penalties for refusing to do so, and where that individual is provided
a reasonable opportunity to consult an attorney before deciding whether to
submit as requested — neither the state nor the federal privilege against
compelled self-incrimination is violated.

Field sobriety tests (standing on
one leg, finger to nose, walking heel-to-toe on a straight line, HGN, etc.) are
very important pieces of evidence for the state in a DWI prosecution. An issue not yet decided by the Minnesota
courts is the admissibility of a defendant’s refusal to perform such tests. However, in State v. Taylor [648 So.
2d 701 (Fla. 1995)], the Florida Supreme Court held a driver’s refusal to
perform such tests was admissible in his criminal trial for DWI. The court held that such tests are not
compelled; consequently, they are not in violation of the driver’s fifth
amendment rights. It further held that
refusal to perform such tests can be an indication of a consciousness of
guilt. Compare * * * State v.
Whitehead [458 N.W.2d 145 (Minn. App. 1990), review denied (Minn.
Sept. 14, 1990)], and Pennsylvania v. Muniz [496 U.S. 582, 110 S. Ct.
2638 (1990)], which held that interrogation questions not related to informing
a driver of his or her implied consent rights, but asked during that process,
are not admissible unless they are preceded by a Miranda
warning.

[5]
Furthermore, the Mallick court also relied on Wisconsin precedent (State
v. Babbitt, 525 N.W.2d 102 (Wis. Ct. App. 1994)) to reach the same
conclusion as the Farmer court: that a refusal is a non-testimonial
communication and therefore is not barred by the Fifth Amendment. Mallick, 565 N.W.2d at 247-48.

[7]
Appellant’s affidavit in support of her memorandum in opposition of enhancement
states in relevant part:

I do not believe I had the full
opportunity of consulting with an attorney I was entitled to when I was asked
to submit to testing in the prior events that led to the implied consent
revocations that are being used to enhance the charges in this matter. I also believe my implied consent
revocations were obtained in violation of my constitutional rights because they
are the product of a violation of my right to be free from unwarranted and
unreasonable searches and seizures, my right against self-incrimination, and I
was denied a fair chance to get independent testing.